#### GEORGE L. FORESTER v. ANSON G. BETTS et al.

(Filed 19 May, 1920.)

(For digest, see Harris v. Turner, ante.)

Civil aotioN, tried before Finley, J., and a jury, at December Term, 1919, of BuNcombe.

Plaintiff sued for a breach of a contract by which the defendant agreed to employ him in his service, as traffic manager, from 18 March, 1918, to 18 March, 1919, at $250 per month from 1 May, 1918, another arrangement having been made as to the months of March and April. There is a provision in the contract that it can be terminated by either party on 90 days notice. Plaintiff entered upon the performance of his duties, and on 4 November, 1918, the defendant notified the plaintiff that he had decided to put an end to the contract, and that plaintiff must quit the service immediately. Plaintiff alleged that defendant had wrongfully terminated the contract by ignoring and repudiating the provision as to notice, and in other respects, and further averring that he was ready, able, and willing to perform his part of the same in every respect. Defendant denied the allegation, and pleaded that during the ninety days plaintiff had earned $400 in other occupations, for which he claimed credit. Plaintiff also alleged other services performed at defendant’s special request, for which he claimed $5,000 as compensation. The court submitted two issues, which, with the answer of the jury, are as follows:

*609“1. Is tbe defendant, Anson G. Betts, indebted to tbe plaintiff, Geo. L. Forester, under tbe written contract for salary, and, if so, in wbat amount? Answer: ‘Yes; in tbe sum of $718.30.’

“2. Is tbe defendant, Anson G. Betts, indebted to tbe plaintiff, Geo. L. Forester, on tbe special contract, as alleged in tbe complaint, and if so, in wbat amount? Answer: ‘No.’”

Judgment on tbe verdict, and defendant appealed.

Plaintiff not represented in this Court.

Stevens & Anderson for defendant.

Walker, J.,

after stating the case: There was evidence to support the verdict, and the question raised upon the pleadings and the evidence was purely one of fact. There was clearly no error in the charge. Tbe judge fairly and fully presented every phase of the case, including the right of the defendant to the credit of $400.00. Whether the credit should have been allowed was solely for the jury upon the evidence and, in this respect, the case is not, in principle, unlike that of Harris v. Turner, decided at this term, ante, 322, where it was held:

1. Jurors are not bound to accept as true all tbe testimony offered by tbe plaintiff or tbe defendant, but can accept a part and reject tbe remainder, being tbe sole judges of tbe testimony and wbat it tends to prove, including tbe credibility of witnesses.

2. If a party desires fuller or more specific instructions than those given by tbe court, be must ask for them, and not wait until tbe verdict has gone against him and then for tbe first time complain that an error was committed.

3. No matter bow strongly tbe evidence supports tbe contention of one party, tbe court cannot, in view of Revisal 1905, sec. 535, forbidding tbe judge to give an opinion upon tbe facts, instruct tbe jury to answer a question of fact in a particular way; such party’s remedy being a request to tbe court that tbe verdict be set aside as being against tbe weight of tbe evidence.

4. Decision of trial court, setting aside a verdict as being against tbe weight of tbe evidence, is not reviewable.

Referring specially to the assignments of error: Tbe judge did give substantially the instructions which defendant alleges, in bis first assignment, that be did not give, as to the credit to which the defendant was entitled. He could not properly have charged, that the defendant should have a deduction of four hundred dollars, as that would have been an expression of opinion upon the evidence and a palpable violation of the act of 1796 (Revisal of 1905, sec. 535; Pell’s Revisal, vol. 1, p. 259, sec. 535, and note). Tbe motion to set aside the verdict as be*610ing contrary to the weight of the evidence was addressed to the sound discretion of the judge and is not reviewable bere. Revisal, sec. 554, sub-sec. 4; Jarrett v. Trunk Co., 142 N. C., 466; Pell’s Revisal, vol. 1, p. 284 and cases; Harris v. Turner, supra, wbicb so fully and completely covers the points raised in the record as to render further discussion unnecessary.

It appears that tbe case was very ably and successfully managed by defendant’s counsel below. Plaintiff claimed damages to tbe amount of $7,886.13 and recovered of this amount only $718.30, and it would seem that be should be asking for another trial, and not tbe defendant.

No error.